UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 21

Docket No. AT-0752-17-0162-I-1

Gary L. Thurman,

Appellant,

v.

United States Postal Service,

Agency.

July 12, 2022

Harvey G. Orr, Riverdale, Georgia, for the appellant.

Candace D. Embry, Landover, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed his removal based on a single charge of improper conduct. For the 

reasons discussed below, we DENY the petition for review and AFFIRM the 

initial decision. We also take this opportunity to revisit the Board’s decision in 

Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010), and similar cases, to 

clarify the factors the Board will consider in determining whether a previously 

raised affirmative defense has been effectively waived or abandoned by the 

appellant.
2

BACKGROUND

¶2 The agency removed the appellant from his position as a PS-4 Laborer 

Custodial based on a single charge of “improper conduct” following an 

investigation conducted by the U.S. Postal Inspection Service into two workplace 

incidents. Initial Appeal File (IAF), Tab 4 at 15-20, 27-30, 49-73. According to 

the agency’s charge, the appellant violated the agency’s Employee and Labor 

Relations Manual’s prohibition against violent and/or threatening behavior when 

he told a coworker that if his vehicle was towed from the agency parking lot 

again, he “would come into work and end up shooting someone out of revenge 

and anger.” Id. at 27. The agency also alleged that the appellant told the same 

coworker that he was having law enforcement follow her because of a verbal 

dispute the two had a year earlier and that the “only reason [he] didn’t have 

anything ‘bad’ happen to her was because she has children.” Id. According to 

the agency, the following day the appellant told the same coworker that he was 

having law enforcement follow and harass a supervisor’s son in retaliation for his 

vehicle being towed from the agency parking lot and that he would make sure t hat 

the supervisor’s son was “booked” for “Driving Under the Influence . . . and other 

traffic violations.” Id. 

¶3 The appellant filed a Board appeal in which he asserted, among other 

things, that the evidence did not show that he engaged in the alleged misconduct. 

IAF, Tab 1 at 2. He also indicated on his appeal form that he was raising the 

affirmative defense of retaliation for prior protected activity, including his filing 

of a Board appeal challenging his placement on an emergency suspension for

essentially the same conduct that formed the basis of the removal action.

1

 IAF, 

 

1

The administrative judge dismissed the appellant’s previous appeal as settled. That 

decision became the final decision of the Board when neither party filed a petition for 

review. Thurman v. U.S. Postal Service, MSPB Docket No. AT-0752-16-0601-I-1, 

Initial Decision (Sept. 6, 2016).
3

Tab 1 at 2, Tab 4 at 104; Thurman v. U.S. Postal Service, MSPB Docket No. 

AT-0752-16-0601-I-1, Initial Decision (Sept. 6, 2016).

¶4 After holding the appellant’s requested hearing, the administrative judge 

found that the agency proved the improper conduct charge by preponderant 

evidence. IAF, Tab 14, Initial Decision (ID) at 3-7. The administrative judge 

also found that the agency established a nexus between the misconduct and the 

efficiency of the service, and that the penalty of removal was reasonable. ID

at 7-8. He affirmed the removal action. ID at 9.

¶5 The appellant has filed a petition for review in which he argues, among 

other things, that he did not engage in the alleged misconduct, that the 

administrative judge erred in his credibility determinations, and that the employee 

to whom he allegedly made the statements possessed poor character, had 

attendance deficiencies, had made inconsistent statements about the alleged 

incidents, had been untruthful in the past, and committed perjury in her hearing 

testimony. Petition for Review (PFR) File, Tab 1 at 1-6. He also argues that the 

agency violated title VII of the Civil Rights Act of 1964 when it towed his 

vehicle but did not tow the vehicles of other employees and that the agency used 

his filing of grievances and discrimination complaints to show that he made 

threats, but that his past filings show that he resolved his problems through means 

other than threats.2 Id. at 7-8. The agency has filed a response to the petition for 

review. PFR File, Tab 3.

 

2

The appellant also argues on review that it is unclear if his parking in an unauthorized 

parking spot was a specification of misconduct. PFR File, Tab 1 at 7. To the extent he 

is arguing that his parking violations were inappropriately considered as a separate 

specification of the improper conduct charge, this argument is without merit. While the 

proposal letter does note that the appellant’s vehicle was towed for improper parking, 

this information was included in the agency’s narrative charge to provide context about 

the events that preceded the appellant’s statements that formed the basis of the 

improper conduct charge. IAF, Tab 4 at 27.
4

ANALYSIS

The appellant has not shown error in the administrative judge’s credibility 

determinations and well-reasoned findings of fact and conclusions of law.

¶6 In sustaining the charged misconduct, the administrative judge thoroughly 

addressed the record evidence, including the hearing testimony concerning the 

contested conversations, and provided a detailed explanation for why he found the 

agency witness’s version of events more credible. 3 ID at 5-7. The administrative 

judge based his findings in part on the witnesses’ demeanor. ID at 6. The Board 

must defer to an administrative judge’s credibility determinations when they are 

based, explicitly or implicitly, on observing the demeanor of witnesses testifying 

at a hearing, and may overturn such determinations only when it has “sufficiently 

sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 

1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs, 838 F.3d 

1367, 1373 (Fed. Cir. 2016); Sabio v. Department of Veterans Affairs, 

124 M.S.P.R. 161, ¶ 38 (2017). The appellant’s arguments on review regarding 

the credibility of the agency’s witness are insufficient to cause us to disturb the 

administrative judge’s well-reasoned findings. Clay v. Department of the Army, 

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative 

judge’s findings when she considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions on the issue of credibility); Broughton 

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

 

3

In making his credibility determinations, the administrative judge relied on the factors 

set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 5-7. 

In Hillen, the Board found that, in assessing a witness’s credibility, an administrative 

judge should consider the following factors: (1) the witness’s opportunity and capacity 

to observe the event or act in question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

contradiction of the witness’s version of events by other evidence or its consistency 

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. 35 M.S.P.R. at 458. 
5

¶7 The appellant argues for the first time on review that the agency engaged in 

“intentional discrimination in violation of title VII of the Civil Rights Act of 

1964” by towing his vehicles, but not those of a number of other agency 

employees. PFR File, Tab 1 at 7-8. The Board generally will not consider an 

argument raised for the first time in a petition for review absent a showing that it 

is based on new and material evidence not previously available despite the party’s 

due diligence. Clay, 123 M.S.P.R. 245, ¶ 6; Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant has not explained why 

this argument could not have been raised before the administrative judge, and 

thus we need not consider it. In any event, the claim is unduly vague; the 

appellant does not identify which type of discrimination this action represented, 

and he provides no explanation for how this alleged discrimination related to his 

removal for improper conduct. Thus, the argument provides no basis to grant the 

appellant’s petition for review. See 5 C.F.R. § 1201.115(d). 

¶8 Regarding the appellant’s argument that the agency used his history of 

filing grievances and discrimination complaints to show that he “must have made

the threats as alleged,” the appellant similarly did not make this argument before 

the administrative judge, and therefore we need not consider it either. PFR File, 

Tab 1 at 8; see Clay, 123 M.S.P.R. 245, ¶ 6; Banks, 4 M.S.P.R. at 271. 

Additionally, the appellant mischaracterizes the agency’s reason for raising his

history of filing grievances and equal employment opportunity (EEO) complaints. 

On cross-examination during the hearing, the agency asked the appellant about a 

series of EEO complaints he unsuccessfully filed against the agency and asked 

whether his failure to succeed in those complaints motivated him to make the 

alleged threatening statements. IAF, Tab 13, Hearing Compact Disc (HCD) 

(testimony of the appellant). Such an inquiry into the appellant’s potential 

motive is not impermissible, and accordingly, this argument also does not provide 

any basis for granting the petition for review. See 5 C.F.R. § 1201.115(d).
6

We overrule the holding in Wynn that the Board must always remand a case for 

consideration of an affirmative defense if an administrative judge has failed to 

comply with its requirements and now make clear that the Board will consider a 

number of relevant factors in determining whether an appellant’s apparent waiver

or abandonment of a previously raised affirmative defense was effective. 

¶9 We now turn to a matter that was not addressed in the appellant’s petition 

for review but that nonetheless requires our attention. As noted above, the 

appellant indicated on his appeal form that he was raising the affirmative defense 

of retaliation for prior protected activity, including filing a Board appeal. 4 IAF, 

Tab 1 at 2. In an order summarizing the prehearing conference that took place on 

February 15, 2017, the administrative judge identified the issues presented on

appeal and noted that, during the conference, the appellant’s representative 

indicated that the appellant was “raising no affirmative defenses.” IAF, Tab 9 

at 2. The order also noted that the issues included in it were “to the exclusion of 

all others” (emphasis in original) and allowed either party to object to the 

summary, which neither party did. Id. at 1-2. The appellant did not discuss the 

prior Board appeal or his claim of retaliation for filing that appeal in any 

subsequent filing or during the hearing, and the administrative judge’s initial 

decision made no reference to the appellant’s prior Board appeal or to any 

potential affirmative defense. HCD; ID. Additionally, neither the appellant’s 

petition for review, nor the agency’s response, mentioned the prior Board appeal 

or a claim of retaliation for filing a prior appeal or the administrative judge’s 

handling of the appellant’s retaliation claim. PFR File, Tabs 1, 3.

¶10 In Wynn, 115 M.S.P.R. 146, ¶ 10, the Board held that when an appellant 

raises an affirmative defense, the administrative judge must address the 

affirmative defense in a close of record order or prehearing conference summary. 

 

4 Although the appellant stated that his claim of retaliation included retaliation for 

filing a previous Board appeal, thus suggesting that retaliation for the prior Board 

appeal was not the only claim of retaliation he was raising, he did not identify another 

retaliatory act or another prior protected activity. IAF, Tab 1 at 2. 
7

Additionally, the Board held that if an appellant expressed an intention to 

withdraw or abandon an affirmative defense, the administrative judge must, at a 

minimum, identify the affirmative defense, explain that the Board will no longer 

consider the affirmative defense in deciding the appeal, and provide the appellant 

with an opportunity to object to the withdrawal of the affirmative defense. Id. If 

an administrative judge failed to take the above steps in confirming an appellant’s 

withdrawal or abandonment of a previously raised affirmative defense, and 

neither the administrative judge’s orders nor the agency’s submissions provided 

the appellant with notice of the proper burdens and elements of proof for that 

affirmative defense, the Board determined that remand would be necessary. Id., 

¶¶ 12-13.

¶11 Although not specifically stated in Wynn, a careful reading of that decision 

reveals that the appellant did not raise his affirmative defense s or the 

administrative judge’s handling of them in his petition for review. Id., ¶¶ 3, 5. 

Nevertheless, the Board in Wynn remanded the appeal with instructions for the 

administrative judge to address the appellant’s affirmative defenses. Id., ¶ 14. 

The Board followed the approach set forth in Wynn in Hall v. Department of 

Transportation, 119 M.S.P.R. 180 (2013), where again, even though there is no 

indication that the appellant raised several of his affirmative defenses or the 

administrative judge’s handling of them on petition for review, the Board 

remanded the appeal for adjudication of all of the appellant’s affirmative 

defenses, even the ones he did not raise on review. Id., ¶¶ 2-3, 6-7, 9.

¶12 Although the Board followed the approach set forth in Wynn in Hall, the

Board has not been entirely consistent in its application of Wynn, and in a number 

of nonprecedential decisions issued after Wynn, the Board identified an 

administrative judge’s failure to provide the notice required by Wynn, but 

nonetheless declined to remand the case for continued consideration of the 
8

affirmative defense claim.

5

 For example, in Brown v. Department of Defense, 

MSPB Docket No. SF-0752-15-0761-I-1, Final Order, ¶¶ 15-18 (Dec. 29, 2016), 

aff’d, 705 F. App’x 966 (Fed. Cir. 2017), the Board noted that the administrative 

judge failed to address the appellant’s due process affirmative defense and, citing 

Wynn, identified that failure as error. Id., ¶ 15. Nonetheless, the Board 

determined that remand was not necessary because the matter could be resolved

on the undisputed record. Id., ¶¶ 15-18. Similarly, in Richard v. U.S. Postal 

Service, MSPB Docket No. DE-0752-12-0398-I-1, Final Order at 4-8 (July 14, 

2014), the Board noted that the administrative judge failed to specifically inform 

the appellant that his affirmative defense of reprisal for the use of Family and 

Medical Leave Act protected leave would be considered waived unless he raised 

an objection to its exclusion from the prehearing conference summary. Id. at 6. 

Based on the administrative judge’s failure to inform Mr. Richard of his ability to 

object to the summary and of the consequence of failing to object, the Board 

found that his affirmative defense was not waived. Id. Nonetheless, the Board 

found that the record on the affirmative defense at issue in that case was 

sufficiently well developed to decide the question without a remand. Id. at 6-8.

¶13 There are also a significant number of nonprecedential decisions in which 

the appellant raised an affirmative defense in the proceedings before the 

administrative judge, the administrative judge failed to follow the instructions of 

Wynn, the appellant either did not raise the affirmative defense or the 

administrative judge’s failure to follow Wynn on review, and the Board did not 

address the matter in the final decision. For example, in Day v. Department of 

Homeland Security, the appellant originally asserted that he was filing claims 

under both the Uniformed Services Employment and Reemployment Rights Act 

 

5 We are not citing the following nonprecedential decisions as precedent in support of 

our decision but rather to show that the Board has not been consistent in this area. See

5 C.F.R. § 1201.117(c)(2). 
9

(USERRA) and the Veterans Employment Opportunities Act of 1998. Day v. 

Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, 

Initial Appeal File (Day IAF), Tab 1 at 4-9. The administrative judge did not 

address the USERRA claim in the Acknowledgment Order or the Close of Record 

Order and did not issue a separate jurisdictional order narrowing the scope of 

issues to be considered. See Day IAF, Tab 2 at 2; Tab 7. In the initial decision, 

the administrative judge did not identify or refer to the USERRA claim. Day v. 

Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, 

Initial Decision (Nov. 30, 2012). Although obedience to the holding in Wynn

would have required remand for consideration of the appellant’s USERRA claim 

even though the appellant did not raise the claim in his petition for review, Day v. 

Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, 

Petition for Review File, Tab 1, the Board nonetheless issued a Final Order

affirming the initial decision without any mention of the USERRA claim or of 

Wynn’s remand requirement. Day v. Department of Homeland Security, MSPB 

Docket No. PH-3330-13-0004-I-1, Final Order (Dec. 23, 2013). 

¶14 Similarly, in Freeland v. Department of Defense, on the initial appeal form 

contesting his removal, the appellant checked the box identifying the affirmative 

defense of discrimination. Freeland v. Department of Defense, MSPB Docket 

No. PH-0752-12-0072-I-1, Initial Appeal File (Freeland IAF), Tab 1 at 5. As in 

Day, the administrative judge did not provide the appellant with notice regarding 

his burden of proving the affirmative defense, did not address the affirmative 

defense in any close of record order or prehearing conference summary and order, 

and did not address it in his initial decision. See Freeland IAF, Tabs 2, 8, 13; 

Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1, 

Initial Decision (Mar. 15, 2012). Additionally, the appellant did not raise the 

matter in his petition for review. Freeland v. Department of Defense, MSPB 

Docket No. PH-0752-12-0072-I-1, Petition for Review File, Tab 1. In the 

Board’s Final Order, it did not state that the discrimination affirmative defense 
10

was waived and made no mention of the affirmative defense, or of Wynn. 

Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1, 

Final Order (Jan. 22, 2013). 

¶15 By obligating the Board on review to address apparently waived affirmative 

defenses sua sponte, Wynn also represented a significant departure from the cases 

that preceded it and upon which it purported to rely. In Erkins v. U.S. Postal 

Service, 108 M.S.P.R. 367, ¶¶ 5, 9 (2008), a case Wynn identified as “similar,”

the Board remanded for adjudication of the appellant’s affirmative defenses when 

the appellant specifically raised the administrative judge’s failure to address his 

retaliation affirmative defense in his petition for review. Similarly, in Carlisle v. 

Department of Defense, 93 M.S.P.R. 280, ¶¶ 11-12 (2003), relied on in the Erkins

decision, the Board remanded the case to the administrative judge for 

consideration of the appellant’s disability discrimination affirmative defense 

claim, concluding that, although the administrative judge adjudicated the claim, 

he improperly failed to consider evidence related thereto and failed to apprise the 

appellant of the applicable burdens for proving it. But, as in Erkins, the Board 

highlighted the fact that the appellant had specifically raised the affirmative 

defense claim below and preserved the issue by raising it again in his petition for 

review. Id., ¶ 11.

¶16 The inconsistent manner in which the Board has treated the requirements set 

forth in Wynn and the departure that Wynn represents from prior precedent leads 

us carefully to consider the wisdom of the inflexible approach articulated in that 

decision. Moreover, a rule that almost mechanically requires a remand in most 

situations in which an appellant raises an affirmative defense in his initial appeal 

and then makes little or no effort to pursue it further could easily result in a 

remand to address an affirmative defense that the appellant decided he did not 

want to pursue or wanted to pursue in another forum. Such meaningless process 

is not an efficient use of the Board’s limited adjudicatory resources, costs the 

parties needless time and expense, and delays closure of the Board appeal. For 
11

example, in Iskander v. Department of the Navy, MSPB Docket No. DC-0752-11-

0090-I-1, Final Order at 5-7 (Dec. 20, 2011), the Board concluded that the 

administrative judge failed to address the appellant’s discrimination affirmative 

defense and, citing Wynn, issued an order remanding the case with instructions 

for the administrative judge to consider the affirmative defense, which was the 

only matter at issue on remand. On remand, the appellant withdrew her 

discrimination affirmative defense, stating that she intended to litigate her 

discrimination claim through the Equal Employment Opportunity Commission 

process, and the administrative judge issued a second initial decision that did 

little more than note the appellant’s withdrawal and adopt the findings of the first 

initial decision. Iskander v. Department of the Navy, MSPB Docket No. 

DC-0752-11-0090-B-1, Initial Decision at 2-3 (Jan. 18, 2012). Thus, the Board 

remand served no apparent purpose. 

¶17 After careful consideration, we find that, to the extent Wynn held that, when 

an administrative judge has failed to comply with its requirements, the Board 

always must raise an affirmative defense waiver or abandonment issue sua sponte

and remand the case for consideration of the affirmative defense , it is overruled.6 

Instead, in determining whether an administrative judge erred in not addressing 

an appellant’s affirmative defenses such that remand is necessary, the Board will 

examine a number of factors that are instructive as to the ultimate question of 

whether an appellant demonstrated his intent to continue pursuing his affirmative 

defense, and whether he conveyed that intent after filing the initial appeal.7 

 

6 Cases that followed the approach set forth in Wynn, such as Hall, 119 M.S.P.R. 180, 

are also overruled. 

7 Nothing in our decision alters the requirement set forth in Wynn, 115 M.S.P.R. 146, 

¶ 10, that administrative judges must, at a minimum, identify all affirmative defenses 

raised in an appeal in any close of record order or prehearing conference summary and 

order, explain that the Board will no longer consider an affirmative defense if an 

appellant expresses the intention to withdraw it, and give the appellant an opportunity 

to object to withdrawal of the affirmative defense.
12

¶18 The factors articulated below are not exhaustive, and none of the individual 

factors identified will be dispositive in determining whether a particular appellant 

will be deemed to have waived or abandoned a previously identified affirmative 

defense. Instead, the applicability and weight of each factor should be 

determined on a case-by-case basis. Among the relevant factors are:

(1) the thoroughness and clarity with which the appellant raised an affirmative 

defense; (2) the degree to which the appellant continued to pursue the affirmative 

defense in the proceedings below after initially raising it; (3) whether the 

appellant objected to a summary of the issues to be decided that failed to include 

the potential affirmative defense when specifically afforded an opportunity to 

object and the consequences of the failure were made clear; (4) whether the 

appellant raised the affirmative defense or the administrative judge’s processing 

of the affirmative defense claim in the petition for review; (5) whether the 

appellant was represented during the course of the appeal before the 

administrative judge and on petition for review, and if not, the level of knowledge 

of Board proceedings possessed by the appellant; and (6) the likelihood that the 

presumptive abandonment of the affirmative defense was the product of 

confusion, or misleading or incorrect information provided by the agency or the 

Board. We now apply the factors set forth above to the facts of the instant case.

 

We are also mindful of Board and U.S. Court of Appeals for the Federal Circuit 

precedent noting that an appellant must be provided with notice of his burden in 

establishing Board jurisdiction over his claim, and nothing in our decision here alters 

that obligation. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44

(Fed. Cir. 1985); Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010). 

Consistent with Burgess and its progeny, if the Board determines that an administrative 

judge’s abandonment or waiver determination was erroneous, and neither the initial 

decision nor the agency’s filings placed the appellant on notice of his burdens, a 

remand still will be necessary to provide the appellant with adequate notice of his 

burdens. See Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 

329, ¶ 8 (2007) (stating that an administrative judge’s failure to provide proper Burgess

notice can be cured if the agency’s pleadings or the initial decision contain the required 

notice).
13

(1) The thoroughness and clarity with which the appellant raised his 

affirmative defense

¶19 On his appeal form, the appellant raised “an affirmative defense of 

retaliation for [] prior protected activity,” including, “filing of a Board appeal 

concerning his emergency placement suspension.” IAF, Tab 1 at 2. This is the 

only information the appellant provided related to his purported affirmative 

defense of retaliation for filing a prior Board appeal. Id. The appellant described

the nature of his prior Board appeal as a challenge to his “emergency placement 

on suspension,” but he did not provide any additional information about the prior 

appeal or offer any explanation of how the agency’s later removal decision was 

taken in retaliation for his filing of that appeal. The only additional information 

in the record concerning the prior appeal was provided by the agency in its 

response to the instant appeal, in which it confirmed that the prior appeal was 

filed and was later resolved by settlement agreement. IAF, Tab 4 at 8-9. The 

appellant did not challenge this characterization in any subsequent filing or at the 

hearing, or offer to expand upon it. Such sparse information regarding the 

potential affirmative defense amounts to little more than a pro forma allegation of 

wrongdoing. E.g., Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, 

¶¶ 31-32 (2007) (finding insufficient a bare allegation of gender discrimination 

unsupported by any factual assertions); Taylor v. U.S. Postal Service, 

75 M.S.P.R. 322, 328 (1997) (determining that the appellant’s pro forma sex and 

race discrimination claims on petition for review were inadequate to show that the 

administrative judge erred in finding those claims unproven); cf. Clark v. U.S. 

Postal Service, 123 M.S.P.R. 466, ¶ 7 (2016) (setting forth examples of cases in 

which the Board distinguished between nonfrivolous and pro forma allegations

and finding that mere conclusory pleadings are insufficient), aff’d per curiam, 

679 F. App’x 1006 (Fed. Cir. 2017). The fact that the appellant failed to provide 

a thorough and clear explanation of his affirmative defense also supports a 

finding that he abandoned his claim.
14

(2) The degree to which the appellant continued to pursue his affirmative 

defense in the proceedings below after initially raising it

¶20 As previously discussed, on his appeal form the appellant stated that he was 

raising “an affirmative defense of retaliation for [] prior protected activity, ”

including “filing of a Board appeal concerning [the appellant’s] emergency 

placement suspension.” IAF, Tab 1 at 2. Following his initial filing, the 

appellant did not reference this purported affirmative defense at any point 

thereafter. The appellant’s silence on this point spanned his additional filings

below, IAF, Tabs 7, 9, and the entirety of the hearing, HCD. The failure to 

mention the affirmative defense after the initial appeal suggests that the appellant 

no longer wished to pursue the claim. This factor supports a finding that the 

appellant abandoned his affirmative defense. 

(3) Whether the appellant objected to a summary of the issues to be 

decided that failed to include the potential affirmative defense when he was 

specifically afforded an opportunity to object and the consequences of his 

failure were made clear

¶21 As discussed above, following a February 15, 2017 prehearing conference, 

the administrative judge issued an order that identified witnesses, approved 

exhibits, and summarized all of the issues to be decided in the appellant’s case. 

IAF, Tab 9. The summary stated that, during the conference, the appellant’s 

representative “indicated that he was raising no affirmative defenses.” Id. at 2. 

The order allowed the parties to object to the content of the summary within 

7 days and stated that a failure to object to an issue would preclude later 

challenge of that issue, including on petition for review. Id. at 1. Neither party 

objected to the content of the order, nor have they challenged its accuracy since 

its issuance. Thus, despite being afforded the opportunity to do so, the appellant 

did not object to the administrative judge’s prehearing conference summary 

stating that he was not raising an affirmative defense and that his failure to object 

to the content of the summary would preclude raising the issue at a later date . 
15

Accordingly, this factor supports a finding that the appellant abandoned his 

affirmative defense.

(4) Whether the appellant raised either his affirmative defense or the 

administrative judge’s processing of the affirmative defense claim in his 

petition for review

¶22 The Board’s regulations provide that “[t]he Board normally will consider 

only issues raised in a timely filed petition for review or cross petition for 

review.” 5 C.F.R. § 1201.115. This adjudicatory approach is consistent with the 

concept that the Board’s administrative judges are in the best position to, among 

other things, develop the record and simplify the issues and that the Board’s role 

is to address contentions of error. See 5 C.F.R. §§ 1201.41(b), 1201.115. The 

Board has consistently followed an approach of declining to address matters that 

were not raised on petition for review on matters other than affirmative defenses. 

In Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 6 n.4 (2016), for 

example, the Board found that, because the appellant did not contest the 

administrative judge’s finding that one of his disclosures was not protected and 

because neither party challenged the administrative judge’s findings regarding 

which contested actions constituted personnel actions covered by the 

whistleblower protection statutes, the Board would not consider the issues. 

Likewise, in Ferrin-Rodgers v. U.S. Postal Service, 115 M.S.P.R. 140, ¶ 4 n.3 

(2010), the Board declined to address the administrative judge’s findings of a lack 

of jurisdiction over several of the appellant’s claims because the petition for 

review did not challenge the findings. Finally, in Cross v. Department of the 

Army, 89 M.S.P.R. 62, ¶ 7 n.8 (2001), the Board did not address whether the 

administrative judge properly found that the agency failed to prove a specification 
16

because the agency did not allege error regarding the specification on review. 

Board precedent since its creation is replete with similar examples. 8

¶23 Seemingly, only in the realm of affirmative defenses has the Board strayed 

from the general practice of only addressing allegations of error raised on petition 

for review, and, while the affirmative defenses addressed in Wynn are important, 

we can discern no principled basis for the decision to treat these types of claims 

differently than other types of claims within the Board’s jurisdiction. In the 

instant case, then, the appellant’s failure to address his affirmative defense of 

retaliation for filing a prior Board appeal or the administrative judge’s handling 

of the affirmative defense claim in his petition for review supports a finding that 

the appellant intended to abandon the claim. 

 

8

Similarly, several U.S. Courts of Appeals generally deem issues not raised on appeal 

to be abandoned. See, e.g., Butts v. Martin, 877 F.3d 571, 584 n.6 (5th Cir. 2017) 

(noting the general rule that issues and arguments not briefed on appeal are abandoned); 

Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (“Issues not briefed on 

appeal . . . are deemed abandoned.”); New Jersey v. Merrill Lynch & Co., 640 F.3d 545, 

547 n.3 (3d Cir. 2011) (holding that a failure to set forth an issue on appeal and present 

arguments in support of that issue in an opening brief generally amounts to 

abandonment and waiver of that issue); Advanced Magnetic Closures, Inc. v. Rome 

Fastener Corp., 607 F.3d 817, 833 (Fed. Cir. 2010) (“This court has consistently held 

that a party waives an argument not raised in its opening brief.”); Smith v. Marsh, 194 

F.3d 1045, 1052 (9th Cir. 1999) (finding that arguments not raised by a party in its 

opening brief on appeal are deemed waived); United States v. Quiroz, 22 F.3d 489, 490 

(2d Cir. 1994) (noting the well-established principle that an argument not raised on 

appeal is deemed abandoned); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 

1991) (finding that issues raised in the district court but not raised on appeal are 

considered abandoned on appeal and not reviewable). The Equal Employment 

Opportunity Commission likewise held that an appellant abandoned certain 

discrimination claims when she made “no mention of either of these bases in her 

statements in support of [her] appeal” of a final agency decision. Hipp v. Department 

of the Air Force, EEOC Document No. 01862916, 1987 WL 769084 (Jan. 13, 1987).
17

(5) Whether the appellant was represented during the course of his appeal 

before the administrative judge and on petition for review and, if he was 

not, the level of knowledge of Board proceedings possessed by the 

appellant

¶24 In some circumstances, the Board will take an appellant’s pro se status into

consideration and be more lenient in the application of Board rules and 

procedures. See, e.g., Ramos v. Office of Personnel Management, 82 M.S.P.R. 

65, ¶ 7 (1999) (taking into consideration an appellant’s pro se status, among other 

factors, in determining that he did not intend to withdraw his appeal); Moorman 

v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995) (noting that the Board 

will consider, among other things, the appellant’s pro se status in determining 

whether good cause exists to waive the time limit for filing a petition for review), 

aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Here, the appellant was represented 

by a union representative at all stages of the proceeding, from the time the initial 

appeal was filed through the hearing and on petition for review before the Board. 

IAF, Tab 1 at 5-6; HCD; PFR File, Tab 1 at 9. Thus, the practice of leniency 

toward pro se litigants in certain instances is not applicable here. Accordingly, 

this factor supports a finding that the appellant intended to abandon his 

affirmative defense. 

(6) The likelihood that the presumptive abandonment of the affirmative 

defense was the product of confusion, or misleading or incorrect 

information provided by the agency or the Board

¶25 The Board has held that it will not give effect to the withdrawal of an 

appeal that was based on misleading or incorrect information provided by the 

agency or the Board. Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007); 

see Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶¶ 10, 15 (2011). 

Similarly, the Board has, on occasion, granted leniency to appellants in 

circumstances in which they obviously were confused or mistaken about the 

Board’s instructions. See Luna v. Department of the Air Force, 86 M.S.P.R. 578, 

¶ 9 (2000) (finding good cause for the appellant’s untimely petition for appeal 
18

based, in part, on his pro se status and his obvious confusion), aff’d, 15 F. App’x 

876 (Fed. Cir. 2001); Caldwell v. Department of the Treasury, 85 M.S.P.R. 674, 

¶¶ 8-9 (2000) (same).

¶26 If there is reason to believe that an appellant’s withdrawal or apparent 

abandonment of a previously raised affirmative defense was the result of 

confusion, or misleading or incorrect information provided to the appellant or his 

representative by the agency or the Board, that would weigh in favor of a finding 

that the appellant did not intend to withdraw or abandon his claim. This may be 

especially true if the appellant is proceeding pro se, and if there is evidence in the 

record clearly demonstrating that he either does not understand the nature of the 

affirmative defense or does not understand the consequences of its withdrawal.

¶27 In the instant case, there is no evidence that the appellant’s representative 

was confused or was misled by the agency or the administrative judge concerning 

the affirmative defense of retaliation for the appellant’s prior Board appeal. As 

previously noted, the appellant’s only reference to the claim was in his initial 

appeal. Moreover, the only additional information provided by the agency 

concerning the affirmative defense was factual in nature, and the agency did not 

provide inaccurate or misleading information about the appellant’s burden in

proving the affirmative defense. IAF, Tab 4 at 8-9. For the above reasons, this 

factor, which considers whether the waiver or abandonment was the product of 

confusion, mistake, or misleading information provided by the agency or 

administrative judge, also favors a finding that the appellant intended to abandon 

his affirmative defense in this case.

¶28 In sum, applying the nonexhaustive list of factors set forth in this decision 

for determining whether an appellant abandoned his affirmative defense, we find 

that the appellant in this case abandoned his affirmative defense and that there is 

no basis for the Board to address the affirmative defense waiver issue on review. 

Accordingly, we conclude that there is no basis to remand the appeal for 

additional proceedings regarding the appellant’s affirmative defense.
19

ORDER

¶29 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. 

§ 1201.113).

NOTICE OF APPEAL RIGHTS9

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

 

9

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
20

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 
21

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
22

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.10 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

 

10 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expir ed on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
23

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.